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Council should reconsider controversial FOIA exemption

Kevin M. Goldberg, Coalition president

The D.C. Open Government Coalition (D.C. OGC) is extremely disappointed that the Council of the District of Columbia has decided to exempt important information about a new and controversial government program in Bill Number B21-0360, the Neighborhood Engagement Achieves Results Amendment Act of 2016 (NEAR Act) without public notice or debate. We call on the Council to reopen discussion of the bill to allow for full consideration — for the first time — of the exemption’s impact on the public’s ability to oversee the activities of the newly formed Office of Neighborhood Safety and Engagement (ONSE).

“I’m not sure which is worse: the fact that a valuable report that can shed light on a novel, untested crime prevention program will be withheld from the public or the fact that the exemption was literally slipped into the bill without any notice after the only hearings were held,” said D.C. OGC President Kevin M. Goldberg. “Given all the debate about the utility of the program itself, it’s incredible that the Council would so flagrantly prevent the public from participating in any part of this process. It encourages citizens to conclude, whether justifiably or not, that the Council is trying to keep them in the dark. This is particularly frustrating after it took such a strong stand for transparency during last year’s debates over access to footage from police body cameras.”

The NEAR Act was introduced September 22, 2015, the Committee on the Judiciary held a hearing on it October 21, 2015, and sent it to the full Council January 27, 2016. That bill, which the Council passed on first reading February 2, 2016, did not include the FOIA exemption. The exemption was part of an amendment in the nature of a substitute introduced March 1, 2016, immediately before enactment on final reading.

The new Title I, Subtitle A, Section 102(c) states that the Office of Neighborhood Safety and Engagement (ONSE) that will be created by the NEAR Act for the purpose of “identification, recruitment and engagement of individuals determined to be at high risk of participating in, or being a victim of violent criminal activity” must provide an annual report to the Council each year regarding its activities. One such activity is “developing a stipend program for active program participants” which has been referred to by many as a program by which the District will provide funds to criminals as a deterrent to committing crimes. The program has been the subject of significant public discussion and heated debate.

Section 102(c)(1) requires that the ONSE report to the Council identify:

The number of individuals successfully recruited and engaged;

The duration of individuals’ participation;

The status of participants’ progress; and

The participants’ age, race or ethnicity, gender and ward of residence.

Notably, this report will not identify the individuals who have been recruited or are participating. The information the ONSE will provide to the Council will be entirely aggregated in nature and will not identify any individuals recruited for or participating in the program. In fact, the report must be “protective of personally-identifying information.” It is clear that personal privacy will be more than adequately protected – and to the extent it may not be protected, the existing exemption found in Section 2-534(2) of the D.C. Freedom of Information Act, which exempts “information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy”, would allow for individual’s names or other personally identifying information to be redacted.

Nonetheless, Section 102(c)(2) states that “[t]he information contained in this report shall be exempt from the Freedom of Information Act.” That section must be removed, because it will prevent D.C. residents from obtaining statistical data from which they can learn how the ONSE is expending substantial government resources, and decide whether the controversial program is meeting its intended goals.

This information simply serves as strong indicator to the Council as to whether this new program works or whether this is public money well spent. And, because it is public money being spent, the public should be able to oversee the program as well. This proposed FOIA exemption unnecessarily prevents that oversight.

“The public has a right to know whether its money is being spent judiciously, especially when the government is taking a risk by instituting an untested program like this one,” Goldberg said. “The program may work or it may not. But it’s our right to judge the results for ourselves.”